Kit Kat Bar's Shape Is Distinct, But Not Enough to Trademark, Court Rules

Kit Kat Chocolate Bar

Photo by: Vadym Boyshenko

Vadym Boyshenko

Would you recognize a Kit Kat in a lineup by its shape alone? Maybe, but a U.K. judge has decided that, although the candy bar’s break-apart four-finger design may be easily identifiable to consumers, it is
not distinctive enough to be trademarked in the U.K.

According to the court, consumers rely on other information — like packaging and logos — to identify a Kit Kat, rather than recognizing the chocolate-covered wafer confection by its shape alone; therefore it failed to meet the bar (no pun intended) for the trademark to be issued.

The ruling, which Nestle (the company that makes Kit Kat globally, although Hershey makes it in the U.S.) says it will appeal, comes as a blow to the chocolate giant, which had been trying to trademark Kit Kat’s shape — in the U.K. and other European countries — since 2010. Cadbury had fought to block Nestle’s move to trademark, as Nestle had
successfully blocked Cadbury’s attempt to trademark the particular shade of purple (Pantone 2685C) used on the wrappers of its chocolate bar wrappers, including its popular Dairy Milk bars — in sort of a Dairy Milk/Kit Kat
tit-for-tat.

Trademark attorney Sharon Daboul called the court’s ruling a “common-sense decision,”
telling the Guardian that, had Nestle succeeded in trademarking the shape of its Kit Kat bars, it would have given the company a “valuable monopoly and competitive advantage over other confectionery manufacturers.”

Now the ruling paves the way for copycat — or should we say copyKitcat? — candy bars to make their way into the marketplace.